Further research pertaining to parks

From 2001 Carswell 218

Pritchett (Guardian ad Litem of) v. Town of Gander

Newfoundland Court of Appeal, Wells C.J.N, O'Neill Marshall JJ.A. Heard: November 6 2000. Judgment: August 30, 2001.

"In nearly fall, 10-year old plaintiff, his 14-year-old brother and another boy were playing on playground owned and operated by defendant town -- Boards from sandbox had come loose and children were using them as seesaws -- While playing with seesaw, plaintiff sustained injury when board flew up and struck him in face -- Town employees inspected playground regularly during summer months for any necessary maintenance but had not noticed or removed loose boards -- Plaintiff brought successful action against town for negligence......Town appealed -- Appeal allowed as to extent of town's liability -- Trial judge applied incorrect standard of care in concluding that town could not scale down inspections as long as park was open to used by public....."

Wells quoted a prior decision Barratt v. North Vancouver (District), [1980] relating to a pothole in the road that caused an accident: "Relying upon the principles stated in the House of Lords in Anns v. London Borough of Merton, Robertson J.A. held that the determination of the frequency at which inspections should be made was a matter of policy to be decided by the Municipality in its discretion. Acting within the power given to it by subs.513(2) of the Municipal Act, the Municipality had exercised its discretion to inaugurate a system of road inspection and to determine the extent of such inspection. Whether the authorities in so exercising their discretion struck a sound balance between the claims of efficiency and thrift was not a question for the court to decide."

Again, in Laurentide Motels Ltd. c. Beauport (Ville): "Where the legislator confers a power upon a public authority, the conferral of power is usually couched in terms of a discretion. The discretionary power is necessary to allow the public authority latitude in which to make decisions that can be categorized as policy decisions: decisions of a political nature for which the authority should be accountable not before the courts but before the electorate or the legislature."

More nuance: Cory J. wrote in Just v. British Columbia, [1989]: "The Crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions. On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of 'policy.'....The manner and quality of an inspection system is clearly p[art of the operational aspect of a governmental activity and falls to be assessed in the consideration of the standard of care issue. At this stage, the requisite standard of care to be applied to the particular operation must be assessed in light of all the surrounding circumstances including, for example, budgetary restraints and the availability of qualified personnel and equipment."

P.19: "This Court recognized in Young v.Newfoundland (Attorney General) (1993)....that the standard of care may be different for a government agency than for an individual. The Court also recognized, in Young, that the standard of care required in respect of the operation and maintenance of a wilderness camping park (with which it was dealing), would not be the same as that of an urban recreation park....Assuming that the type and frequency of safety inspections within a park must be greatly influenced by the p[ark description, contrast it with parks of another sort: the traditional urban park with manicured lawns, pruned bushes and hedges, decorative flower beds, stately trees and walkways neatly and precisely defined."